Free to Speak Your Mind

Free to Speak Your Mind

Why Hate Speech Should Be Protected

for Professor Bernice Harris

Honors Writing 1033-2, University of Tulsa

December 3, 1993

This paper looks at recent legislation targeted at so-called "hate speech." Seeking to relieve certain groups from psychological distress resulting from discriminatory communication, these laws limit the extent to which derogatory statements can be made regarding differences of race, sex, and religion. While the motives (i.e., protecting people from emotional harm) are to be respected, the resulting legal codes conflict with the fundamental American ideals of freedom and ultimately do not aid minorities in their quest for more respect. These codes should not be in effect; rather, generic laws that do not target opinions of the speaker should be used in their place.

As far as anyone can remember or read about, there have been differences between people: differences of race, gender, or religion. Consequently, there have been those who believe that their "differentness" is better, or that another's is worse, and hence ensue derogations both verbal and physical, and in some areas even wars. In a (hopefully) more civilized first-world country such as the United States, many (including the author) believe that all criticism should be, if present at all, both mature and appropriate. No speech regarding personal differences should be rude or hostile. Since such a utopia obviously does not exist anywhere, those trying to remedy the situation have attempted to establish so-called "hate speech" laws, codes that would make it illegal at certain times and in certain places to demean another's race, sex, or religion. When these codes are made compulsory, however, they limit not only the speaker's expression but also the speaker's opinion. They run the risk of violating not only that person's freedom of speech, but a more personal right, the freedom of thought. Therefore, hate speech codes that punish others for and because of being prejudiced in their thoughts and speech should not be imposed for four reasons:

Hate speech codes go against the principles that form the foundation of freedom in America.

The Supreme Court makes it clear that such hate speech codes are unconstitutional.

Hate speech codes are ineffective; they simply do not work, and simultaneously do not address the central motives that drive hate speech.

Hate speech codes are irrelevant; many problems can be solved by using existing, more general laws instead of resorting to specific, freedom-limiting hate speech codes.

The Land of The Free

In the United States of America, thoughts are free and should always remain so. The thoughts, beliefs, likes, and dislikes of a person should always be left entirely to the discretion of each individual. Each person should be allowed to express these thoughts in any way he/she chooses, to the extent that the actions used to express these ideas are legal.

Taking this idea into real life, a person may hate Jews as much and as long as he/she likes, and can tell as many people as he/she wants. However, if that person decides to burn down the house of a Jewish neighbor, that person would and should be arrested and sentenced. The literal action is arson, and is illegal. However, the fact that the person hated Jews is irrelevant; what was done is still a crime, regardless if he/she burned the house because of its color or anything else, for that matter. If the criminal is given a stronger sentence because of that person's anti-Semitic views, that person's thoughts and beliefs are being judged and prosecuted by the courts.

Some may make the argument that the thoughts of a criminal do matter, and should be considered in sentencing. In other words, "shooting with intent to kill" should incur a more severe sentence than a hunting accident in which a person gets mistaken for a deer. This is true, but a distinction should be made between "motivation" and "intent." Her, motivation will be defined as why someone did something. This should not have a bearing on a criminal conviction. Take, for instance, a hypothetical situation in which a black man stabs a white man, but the victim survives. In this example, the criminal has a racial motivation, as he wishes to kill the victim because he is white. This motivation should not have any bearing on the criminal prosecution; if someone wants to dislike, or even hate a person, because of race (or hair color, for that matter), it should be their business. The intent in this case, however, is murder, and should make a difference in sentencing. The intent is the "end," or the ultimate goal of the criminal. Here, the punishment should reflect the fact that the criminal intended to kill the victim, and should incur a more severe punishment.

Unconstitutional Codes

Approximately 100 colleges and universities in the United States have formed ordinances against discriminatory speech based on race, religion, ethnicity, gender, or sexual orientation (Celis A13). In the last two years, seven states have created new hate speech legislation and six states have made their existing legislation stronger. In fact, the only states without hate-crime laws are Utah, Wyoming, Nebraska, and Alaska (Ingwerson 9). Using the classification of "hate speech," these rules limit speech based upon its content along with the personal feelings of the person expressing themselves. The University of Wisconsin, for example, until just recently had a rule barring "speech intended to create a hostile learning environment by demeaning a person's race, sex, color, creed, disability, sexual orientation or ancestry" (U. of Wisconsin Repeals A10). Trying to protect the feelings of all, these rules limit students' expression. Such rules are based upon good intentions: protecting minority groups from being offended. However, the courts have recently ruled that many of these codes are too broad and take away one of the fundamental rights of American citizens: the right of free speech.

It is the function of the Supreme Court to interpret the laws of the state and determine how they should be applied to actual situations. All laws must above all be "constitutional"—that is, they may not contradict the Constitution of the United States, the supreme law of the nation. The First Amendment says this about the freedom of speech:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This of course does not broadly include every form of expression in existence. In a 1942 ruling, the Court explained that:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace (Haiman 39).

It is specifically this concept of "fighting words" that some have used to try to enact hate speech ordinances. It has been established by the Supreme Court, however, that "government may not select for punishment only those 'fighting words' that the state considers demeaning to particular groups" (Hentoff A29). What the Court is saying here is that one reason why these rules are unconstitutional is that they single out only certain groups to protect. If everyone is equal under the law, then the law cannot show partiality. A law limiting racist speech cannot at the same time not limit speech directed at for example, the mentally ill (Hentoff A29). If one group cannot be spoken against, all groups cannot be spoken against, and this policy ultimately runs into all sorts of complications. If actually applied, it would be illegal to tell blonde jokes.

The city of St. Paul provides an example of such unconstitutional statutes. In June of 1990, two white males burned a homemade cross on the lawn of the only black family in their neighborhood. In R.A.V. v. City of St. Paul, the city tried to prosecute these two under that city's hate speech laws, which outlawed speech that causes "anger, alarm, or resentment" based on race or religion (Ingwerson 9). Instead of trying these youths on grounds of trespassing, the city tried to say that their intent of expression was wrong. However, the Supreme Court ruled that the government may not limit "speech on the basis of its content," as Justice Antonin Scalia said for the five-member majority (Greenhouse A1).

What is not evident at first in the St. Paul case is that the young men could, and still can, be tried on the grounds of trespassing or vandalism. However, the city decided to use the 1982 ordinance that punished the motives of the perpetrators. This comes close to thought control. It should not be a crime in the United States to think certain things. What these young men did was unlawful. But their thoughts and motives are their business, not the business of the government. Indeed, as stated by William Roath, head of the Minnesota Civil Liberties Union, "We've always said that the people who perpetrated that act should be prosecuted, but they should be prosecuted for their acts, for burning something on the property of another, for trespass, arson, vandalism, and so forth." Punishing speech based on its content is going past limiting actions to the point of the government controlling a person's thoughts and motives.

The decision in the St. Paul case makes it evident that the broad hate speech codes are against the constitution, and are against one of the ideals the United States was founded on: freedom of expression. Rod Smolla, an expert on free speech at the law school of the College of William and Mary in Williamsburg, Virginia, states that the ruling "makes almost all possible forms of hate-speech bans unconstitutional" (Ingwerson 9). Because of the Supreme Court ruling in the St. Paul case, many universities are now rewriting their ordinances to further define just what hate speech is, and to bring these ordinances into compliance with the Supreme Court decisions (Celis A13).

More and more, Court decisions are rightly striking down ordinances that try to control the thoughts and speech of American citizens. Recently, the University of Wisconsin and the University of Michigan have had their hate speech codes rejected by the courts, and have had to do ordinance revisions (Celis 9). The people who have been elected to interpret the Constitution agree that in this case the risk of offensive speech is not as severe as the risk of a government limiting the free speech of its citizens.

Making a Difference

Some advocates of hate speech codes, realizing the emotional pains that hate speech sometimes causes, are willing to risk denying citizens of rights in order to spare individuals from psychological discomfort. However, hate speech codes often fail in this attempt and in the long run may be detrimental to the very cause that minority groups and those wanting hate speech codes ultimately hope to gain: an actual change in public opinion, a "change of heart" in which individuals voluntarily give up their prejudiced views. While it would be irresponsible for one to claim that, just because there will always be someone to break a law that that law should be repealed, it stands to reason if a law denies someone's rights and is in concept unconstitutional (as has been demonstrated earlier), the fact that it is ineffective provides yet another reason why it should not be used.

Hate speech codes without doubt punish people for their opinions. However, what these laws do in response to these opinions is to stop the outward manifestations, the public remarks of prejudiced people. Hidden deep within these people is a reason for this inappropriate speech, whether bad experiences or inadequate education. Public education campaigns and reasoned debates could cause a voluntary change in opinion. However, hate speech codes do nothing to change the very feelings that they are trying to punish, and at the same time may actually keep them inside, allowing them to turn into physical manifestations of violence. This reasoning is not social blackmail, but simply another reason to abandon the use of hate speech laws because, as has already been demonstrated, hate speech laws are not legally sound in the first place as they deny citizens of fundamental rights. Repression of actions solely because of someone's thoughts brings about undesirable results in society; this fact is simply another straw on the back of the already burdened camel of hate speech legislation.

In review, it has thus far been demonstrated that hate speech codes go against the foundational ideas of American freedom. They are not constitutionally rooted, and are inadequate. Going further, however, it is also possible that these codes can in some instances defeat the very purpose that minority groups are working towards: creating a more acceptable societal view. As Jimmy Zahler brilliantly explains in Is Censorship of Hate Speech Beneficial?, "the movement to censor hate speech could also be misconstrued as fear" (Zahler 3). Those who practice hate speech may very well perceive a person's attempt to limit hate speech as an attempt to censor ideas, and in doing so intensify the very problem they hoped to limit.

Use Something Else

It should be noted that the hate speech codes that are now in effect are irrelevant; they can (and should) be replaced by existing laws that are more generic. This would take care of a large part of the criminal prosecution aspect without unnecessarily denying rights. As has been previously discussed with the St. Paul case, the two young men could easily have been charged with arson, which does not involve any judgement on the thoughts or opinions either has. This applies not only to physical acts, but to psychological effects as well. As has been noted, hate speech undeniably often causes emotional distress, but there are laws concerning speech that causes emotional distress in general (e.g. the tort of "intentional infliction of emotional distress," Haiman 148), and these laws should not be limited to speech concerning race, gender, or religion. Indeed, there is "no basis for distinguishing scurrilous communication about racial, religious, and ethnic groups from other kinds of utterances that may sting emotionally…." (Haiman 97).

In conclusion, there has been and will always be differences between people. The solution to cutting remarks and emotionally charged communication is not to legally limit the thoughts and opinions a person can express. A person should be allowed express their opinions in a non-violent matter. If a person acts unlawfully in doing so, that person should be punished, using existing generic codes, because of his/her literal actions, not thoughts or opinions. At the same time, minority groups should use that same freedom of speech to peaceably educate the public and work on the root of the problem, the misconceptions of the prejudiced, and in doing so effect a voluntary change in public opinion.